113 U.S.

73
5 S.Ct. 377
28 L.Ed. 927

HESS
v.
REYNOLDS, Adm'r, etc.
January 5, 1885.

Henry Newbegin, for plaintiff in error.

E. M. Marble, for defendant in error.
This is a writ of error to the judgment of the circuit court for the Eastern
district of Michigan, remanding a cause to the state court, from which it
had been removed into the circuit court. The record shows that plaintiff in
error, who was a citizen of Missouri, prosecuted his claim in the probate
court of Ionia county, Michigan, against the estate of Warren Sherwood,
deceased, of which William Reynolds had been appointed administrator.
The claim being resisted, was, in due course of proceeding, referred to
commissioners appointed by the probate judge, who reported against its
allowance. Thereupon Hess, as the Michigan statute authorized, appealed
to the circuit court of Ionia county, where he was entitled to a trial by jury.
The judge of that court having been counsel for the administrator in the
case, it was by proper order removed to the circuit court of Jackson
county after a delay of several years, and from that court into the circuit
court of the United States, on the affidavit of Hess that he had reason to
believe, and did believe, that, from prejudice and local influence, he would
not be able to obtain justice in said state court.
[Argument of Counsel from pages 74-75 intentionally omitted]
MILLER, J.

The first objection to the removal is that the proceeding in the state court,
which was commenced in the probate court to obtain payment of a claim
against the estate of a decedent, then under administration in that court, was
within the exclusive jurisdiction of the state court, and could not be transferred

to a court of the United States. This proposition has been often asserted here
and as often denied. It is not denied that the laws of the states are valid which
provide for the descent and distribution of property of a decedent, for the proof
and registration of wills, for the collection of debts due to the decedent, and the
payment of the debts which he owed at the time of his death. Nor is it denied
that such courts as are usually called probate courts are rightfully vested in a
general way with authority to supervise the collection of these debts and other
assets, the payment of the debts of the decedent, and to make distribution of the
remainder. But the estate of a decedent is neither a person nor a corporation. It
can neither sue nor be sued. It consists of property, or rights to property, the title
of which passes on his death, with right of possession, according to the varying
laws of the states, to executors of a will, administrators of estates, heirs or
devisees, as the case may be.
2

These parties represent in their respective characters the rights which have
devolved on them in any controversy, legal or equitable, which may become a
matter of judicial contest with other parties having conflicting interests. In
regard to controversies with debtors and creditors, the executor, if there be a
will, or the administrator, if one has been appointed, represents the rights and
the obligations which had been those of the deceased. The right of the
administator or executor to sue in the ordinary courts of the country to enforce
the payment of debts owing the decedent in his life-time, and unpaid at his
death, has always been recognized; and it is believed that no system of
administering the estates of decedents has changed this principle. The courts of
the United States have always been open to such actions when the requisite
citizenship exists, and for this purpose the citizenship of the administrator or
executor controls, and not that of the decedent. So, also, until recent times, the
administrator or executor was liable to be sued in the ordinary courts, whether
state or national, on obligations contracted by the decedent, and such is
probably the law of most of the states of the Union at this day. To such a suit
the administrator could, at common law, have pleaded that there were no assets
in his hands unadministered, or he could have denied the cause of action set up
by plaintiff. How far a denial of assets would be a good plea now depends on
the statutes of the various states, and the various modes of obtaining equality of
distribution among creditors where there is not enough to pay all. Such suits, in
the absence of any controlling law, can be brought, and have been brought, in
the courts of the United States where the requisites of jurisdiction between the
parties exist. This jurisdiction of the courts of the United States, in
controversies between citizens of different states, cannot be ousted or annulled
by statutes of the states assuming to confer it exclusively on their own courts.

It may be convenient that all debts to be paid out of the assets of a deceased

man's estate shall be established in the court to which the law of the domicile
has confided the general administration of these assets. And the courts of the
United States will pay respect to this principle in the execution of the process
enforcing their judgments out of these assets, so far as the demands of justice
require. But neither the principle of convenience nor the statutes of a state can
deprive them of jurisdiction to hear and determine a controversy between
citizens of different states when such a controversy is distinctly presented,
because the judgment may affect the administration or distribution in another
forum of the assets of the decedent's estate. The controverted question of debt
or no debt is one which, if the representative of the decedent is a citizen of a
state different from that of the other party, the party properly situated has a
right, given by the constitution of the United States, to have tried originally or
by removal in a court of the United States, which cannot be defeated by state
statutes enacted for the more convenient settlement of estates of decedents.
4

These views have been expressed by this court in many cases where they were
proper grounds for the decisions made. The latest of them, in which the others
are reviewed with care, is that of Ellis v. Davis, 109 U. S. 485, S. C. 3 SUP.
CT. REP. 327, in which the opinion was delivered by Mr. Justice
MATTHEWS. Among the cases there cited with approval is that of Gaines v.
Fuentes, 92 U. S. 10. That was a suit brought in the Second district court for
the parish of Orleans, which, by the laws of Louisiana, was vested with
jurisdiction over estates of deceased persons and probate of wills. It was
brought to annul the will of Daniel Clark, and to set aside the decree of the
court by which it was admitted to probate. Application for removal of the case
into the circuit court for the United States, on the ground of prejudice and local
influence, under the act of 1867, as in the case now before the court, was
refused, though the requisite citizenship of the parties was shown. The action of
the district court having been affirmed in the supreme court of that state, the
case was brought here on the allegation of error in refusing to grant the order of
removal. The same argument was advanced in favor of the exclusive
jurisdiction of the state court as in the brief of the counsel in the present case.
But this court said: 'The constitution imposes no limitation upon the class of
cases involving controversies between citizens of different states to which the
judicial power of the United States may be extended; and congress may,
therefore, lawfully provide for bringing, at the option of either of the parties, all
such controversies within the jurisdiction of the federal judiciary.' 'And if by
the law obtaining in the state, customary or statutory, they can be maintained in
a state court, whatever designation that court may bear, we think they may be
maintained by original process in a federal court, where the parties on one side
are citizens of the state of Louisiana, and on the other citizens of other states.'
This court reversed the judgment of the Louisiana courts, and held that the

application for the removal should have been granted, and ordered the case to
be remanded to the parish district court, with directions to make the transfer.
The cases of Payne v. Hook, 7 Wall. 425, and Hyde v. Stone, 20 How. 170, are
to the same effect. In the latter case the court said, with much force and
propriety, that it 'had repeatedly decided that the jurisdiction of the courts of
the United States over controversies between citizens of different states cannot
be impaired by the laws of the states which prescribe modes of redress in their
courts, or which regulate the distribution of their judicial powers.'
5

The case of Boom Co. v. Patterson, 98 U. S. 403, is also in point. That was a
special proceeding to condemn property under laws of the state of Minnesota in
the exercise of the right of eminent domain, which, commencing before special
commissioners to assess damages, was by appeal brought into a court of
general jurisdiction, and from there removed, rightfully as this court held, into
the circuit court of the United States. The case before us was one removable
into the court of the United States.

The next objection to the removal is that the application was made too late. If
the case is only removable under the act of 1875, and if that statute repeals or
supersedes all other statutes for the removal of causes from the state courts into
the circuit courts of the United States, then the motion was made too late, for
there was a period of five years in the circuit court of Ionia county during all
which time the case stood for trial. See Pullman Palace Car Co. v. Speck, ante,
374. But though such has often in argument been asserted to be the effect of the
act of 1875, the language of the repealing clause of it is not so comprehensive.
That language is 'that all acts and parts of acts in conflict with the provisions of
this act are hereby repealed.' This implies very strongly that there may be acts
on the same subject which are not thereby repealed. The usual formula of a
repealing clause intended to be universal is that all acts on this subject, or all
acts coming within itspur view, are repealed, or the acts intended to be repealed
are named or specifically referred to. In this case the effect of the statute as a
repeal by implication, arising from inconsistency of provisions, or from the
supposed intention of the legislature to substitute one new statute for all prior
legislation on that subject, is not left to its usual operations, but the statute to be
repealed must be in conflict with the act under consideration or that effect does
not follow. And this was wise, for congress well knew that there were many
provisions of the laws for such removals which might or might not come under
the provisions of the act of 1875, and which might be exercised under
regulations different from that statute, and accordingly these were left to stand,
so far as they did not conflict with that act.

The provisions of the act of 1867, by which removals are authorized on the

ground of prejudice and local influence, is embodied in the Revised Statutes, in

the third clause of section 639. It declares that in such a case, with the requisite
citizenship, when the non-resident party files the proper affidavit, at any time
before the trial or final hearing of the suit, it shall be removed. We do not think
this provision is embraced in the act of 1875, which says nothing about
prejudice or local influence, and is not in conflict with that act. We are of
opinion that this clause of section 639 remains, and is complete in itself,
furnishing its own peculiar cause of removal, and prescribing, for reasons
appropriate to it, the time within which it must be done. One of these reasons is
that the prejudice may not exist at the beginning, or the hostile local influence
may not become known or developed at an earlier stage of the proceedings.
Congress, therefore, intended to provide against this local hostility, whenever it
existed, up to the time of the trial. It is said, however, that the trial spoken of
had taken place before the commissioners of Ionia county, to whom the case
had been referred. But we do not look at that proceeding as a trial within the
meaning of the statute. It was merely a report, subject to be affirmed or rejected
by the probate judge, and, by the express terms of the statute, subject to a right
of appeal to a court in which a trial by jury could be had. The latter was the trial
or final hearing of the suit which would conclude the right of removal; and until
such trial commenced, the right of removal under this provision remained.
8

It is argued that the cause should have been removed to the circuit court for the
Western district of Michigan instead of the Eastern, because the county of
Ionia, in which the suit originated, is in the former. But the language of the
removal statute is that suits shall be removed into the circuit court of the district
where such suits are pending. Undoubtedly this means where they are pending
at the time of removal. This suit was not then pending in the Western district of
Michigan, but in the county of Jackson, which is in the Eastern district of that
state. We are of opinion that the case was properly removed from the circuit
court of Jackson county into the circuit court of the United States for the
Eastern district of Michigan, and that that court erred in remanding it. Its
judgment to that effect is therefore reversed, with instructions to proceed in the
case according to law.

Mr. Justice GRAY dissents.